Brown v. State

• Decision Date: 06 May 1959
• Docket Number: No. 30689,30689
• Citation: 323 S.W.2d 954,168 Tex.Crim. 67
• Court: Texas Court of Criminal Appeals
• Parties: J. Von BROWN, Appellant, v. STATE of Texas, Appellee.

Page 954

323 S.W.2d 954

168 Tex.Crim. 67

J. Von BROWN, Appellant, v. STATE of Texas, Appellee.

No. 30689.

Court of Criminal Appeals of Texas.

May 6, 1959.

Robert C. Benavides, Dallas, for appellant.

Henry Wade, Dist. Atty., H. Dustin Fillmore, Henry L. Baccus, Dallas, Robert H. Power Irving, and Merle Flagg, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is possession of barbiturates; the punishment, two years in jail.

The second count of the information alleged that on or about September 3, 1958, in Dallas County, Texas, appellant 'did then and there unlawfully possess barbiturates.'

Motion to quash the information and dismiss the prosecution was filed, alleging that appellant was a manufacturer of drugs duly licensed by the Board of Pharmacy of the State of Texas, and directing attention to Subdivision (6) of Section 5 of art. 726c Vernon's Ann.P.C. exempting manufacturers from the provisions of Subdivision (e) of Section 3 of the Act which makes it a penal offense for any person to possess a barbiturate.

This Court's holding in Browning v. State, 161 Tex.Cr.R. 273, 276 S.W.2d 522; Nesbit v. State, Tex.Cr.App, 306 S.W.2d 901; and Ex parte Engel, 158 Tex.Cr.R. 95, 253 S.W.2d 430, supports the State's position that the right of a manufacturer or other person authorized to possess a barbiturate is limited to possession incident to the manufacture, handling, sale and distribution permitted by art. 726c, V.A.P.C. Sec. 12 of the Act provides that it shall not be necessary to negative such exemption or exception and the burden is upon the defendant to show the facts by reason of which the charged possession is excepted, excused or exempted.

We do not understand that proof before the trial judge that appellant held a permit as a manufacturer, together with his testimony that he never saw the 44 nembutal capsules taken from his brief case by the officers until they were so taken, defeated the information and required that it be quashed or dismissed.

The first count of the information alleged that appellant did unlawfully carry on and about his person a pistol. Both counts were submitted to the jury and resulted in guilty verdicts, but the court granted a new trial on the carrying a pistol charge.

The 378 page statement of facts shows that 44 capsules containing nembutal were found in a brief case in the Cadillac automobile following appellant's arrest upon the occasion and under the circumstances set out in our opinion in Brown v. State, Tex.Cr.App., 322 S.W.2d 626.

The defensive theory was that appellant was not aware that there were nembutal capsules in the brief case.

On his trial for the misdemeanor offense of possessing barbiturates, evidence was admitted showing or tending to show also an assault upon the officers with a pistol; the finding of a second loaded pistol in the brief case and a tear gas gun resembling a fountain pen in appellant's pocket; and appellant testified that he had been convicted of a felony in Federal Court. Not content with this favorable position, the State also got before the jury the fact or inference that appellant and Anderson, the driver of the Cadillac, had engaged in acts of sodomy.

The State's evidence was that appellant carried a brief case from the church to the Cadillac.

Anderson, who was driving the Cadillac, testified that he got the brief case off the church rostrum and put it in the car, and that he did not know it contained barbiturates.

On cross-examination Anderson was asked: 'All right, now, Grady, so that we can better understand your position in this case, I will ask you if it isn't a fact, Grady, that you have been and you are in love with this Defendant to the extent that you have had sexual relations with him?'

Objection that the question was highly inflammatory was sustained and the jury instructed to disregard the question, but motion for a mistrial was overruled.

A conference between the court and the assistant district attorney ensued and the court announced 'I am not going to let you go into it,' following which the witness was asked and answered: 'You are not married, are you? A. No, I'm not.

'Q. And at the time this case came up you were living with Father Brown, is that not a fact? A. Off and on, yes.'

Motion for mistrial was again made and overruled 'at this time.'

In the absence of the jury the witness was examined and was again asked if he had had sexual relations with appellant and answered no. He admitted that he had made a statement to the contrary but testified that he did so to avoid the threat of being put in jail if he did not.

Motion for mistrial were later urged after appellant was asked 'As a matter of fact, he (Anderson) was your roommate wasn't he, on occasions?' and 'Did you stay up there with ...